EVGA Marketplace Terms of Use And End User Agreement

THE FOLLOWING DESCRIBES THE TERMS ON WHICH EVGA.COM CORP. OFFERS YOU ACCESS TO OUR MARKETPLACE SERVICE.

You must read, agree with and accept all of the terms and conditions contained in this User Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may use the EVGA Marketplace.

We may amend this Agreement at any time by posting the amended terms on the Marketplace. Except as stated below, all amended terms shall automatically be effective after they are posted and accepted.

Membership Eligibility.
Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18). Additionally, all users must be EVGA Members. To sign up as a member, visit http://www.evga.com/login.asp?switch=6. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement.

Fees and Services.
At this time, EVGA Corp. does not charge any fees for the use of the Marketplace.

The EVGA Marketplace is a Venue.
EVGA is not the seller or owner of any products listed on the Marketplace. For all other sales, we act only as a venue to allow anyone to offer, sell, or buy anything listed. We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. We cannot ensure that a buyer or seller will actually complete a transaction.

Identity Verification.
EVGA Corp. does not ensure the accuracy of information that users provide to us when they register as Members. In order to help establish a safer environment, we have established a user-initiated feedback system to help you evaluate with whom you are dealing. We also encourage you to communicate directly with potential trading partners.

Release.
Because we are a venue, in the event that you have a dispute with one or more users, you release EVGA Corp. (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

Information Control.
We do not control the information provided by other users that is made available through our system. You may find other user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using the Marketplace. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using the Marketplace, you agree to accept such risks and EVGA is not responsible for the acts or omissions of users on the Marketplace.

Buying.
As a buyer, you are obligated to complete the transaction with the seller if you purchase an item.

Listing Description.
You must be legally able to sell the item(s) you list for sale on the Marketplace. You must describe your item and all terms of sale on the listing page of the Marketplace. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item.

Binding Sales.
If you receive a purchase offer, you are obligated as the seller to complete the transaction with the buyer, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of your listing (such as payment method), or (b) you cannot authenticate the buyer's identity.

Fraud.
Without limiting any other remedies, EVGA Corp. may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Marketplace.

Your Information.
Definition. "Your Information" is defined as any information you provide to us or other users in the registration, buying or selling process, or through any email feature. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.

Restricted Activities.
Your Information (or any items listed) and your activities on the Marketplace shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit or stolen items; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) be obscene or contain child pornography; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers.

License.
Solely to enable EVGA Corp. to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information. EVGA will only use Your Information in accordance with our Privacy Policy.

Distribution of Information to Buyer and Seller.
At the successful completion of a transaction, the buyer’s information (including full name, address, phone number, and email address) will be sent to the seller; and the seller’s information (including full name, address, phone number, and email address) will be sent to the buyer. This is done to allow the buyer and the seller to initiate communication with each other and to successfully complete their transaction. Use of this information by either buyer or seller for purposes other than those stated here shall be deemed a violation of this agreement.

Feedback.
You may not take any actions that may undermine the integrity of the feedback system. If you earn a net feedback rating of <2 (less than 2), your membership may be suspended, and you may be unable to list or buy.

Breach.
Without limiting other remedies, we may limit your activity, immediately remove your item listings, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we believe that your actions may cause financial loss or legal liability for you, our users or us.

Privacy.
We do not sell or rent your personal information to third parties for their marketing purposes without your explicit consent and we only use your information as described in the Privacy Policy. We view protection of users' privacy as a very important community principle. We understand clearly that you and your information is one of our most important assets. We store and process your information on computers located in the United States that are protected by physical as well as technological security devices. Our current Privacy Policy is available at http://www.evga.com/policy.asp. If you object to your Information being transferred or used in this way please do not use our services.

No Warranty.
WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.

Liability Limit.
IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US (IF ANY) IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Indemnity.
You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.

Legal Compliance.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.

No Agency.
You and EVGA Corp. are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

Notices.
Except as explicitly stated otherwise, any notices shall be given by postal mail to EVGA Corp. Attn: Legal Department 2900 Saturn Street, Suite B, Brea, CA 92821 or to the email address you provide to EVGA Corp. during the registration process (in your case). Notice shall be deemed given 1 business day after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to EVGA Corp. during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.

Resolution of Disputes.
In the event a dispute arises between you and EVGA Corp., our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and EVGA Corp., agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.

Binding Arbitration.
For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, you or EVGA Corp., may elect to resolve the dispute through binding arbitration. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Court.
Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Orange County, California or where the defendant is located (in our case Brea, California, and in your case your home address or principal place of business). You and EVGA Corp. agree to submit to the personal jurisdiction of the courts located within the county of Orange, California.

General.
This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. We do not guarantee continuous, uninterrupted or secure access to our services, and operation of the Marketplace may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.